and inclusive legal positivism
has occupied the attention of legal
and legal positivism
, though it goes mostly unrecognized today owing to
More important, Hayek argues that legal positivism
fails as a normative matter by implicitly 'identifying the law exclusively with state law, positivists gave a false account of law and banished from jurisprudence many rules on which the social and economic order, and hence, the authority of the state rests.
Beginning in the last half of the nineteenth century, but especially during the twentieth century, legal positivism
emerged as the dominant theory of law.
However, in spite of legal positivism
recognizing these arbitrary precepts as law, it does not maintain that "that which the holders of power judge convenient for the common good, the fancies of a despot, punishments decreed without law or previous condemnation" (Radbruch, 2009, p.
For CBP, however, the two riddles of legal positivism
present no difficulty.
29) Admittedly, in some of these cases legal positivism
prevails as in The Antelope, in which Justice Marshall, while admitting that slave trade was "contrary to the law of nature," nevertheless upheld its legality on the premise that the state of the law is unalterable because it is rooted in the consent and practice of nations.
44) Removing morality as an essential part of the identity and content of law, as legal positivism
urges, has severe repercussions on a society to which a law applies for three reasons.
It also points to a more plausible connection between Jeremy Bentham and Hart, for Bentham always embedded his legal positivism
within his general account of morality, the philosophy of utilitarianism.
Hart was invited to deliver the Oliver Wendell Holmes Lecture at Harvard Law School and devoted it to a defense of legal positivism
, especially its insistence on the separation between law and morality.
I then use this distinction between the four concepts to criticize legal positivism
Both legal pluralism (a specialist outgrowth of legal anthropology) and, for want of a better term, deconstructionism had set out to debunk the predominant theory of legal positivism